On June 4, 2009, the European Court of Justice (E.C.J.) rendered a decision on exchanges of information between competitors and ruled for the first time that a single meeting between competitors can amount to an anticompetitive concerted practice. Moreover, the E.C.J. stated that the burden of proof rests with the competitors to prove that they did not improperly make use of the shared information in their subsequent market conduct.
The Dutch Competition Authority had referred to the E.C.J. three interlocutory questions in a case in which five operators of mobile telecommunications services in The Netherlands held a meeting in June 2001 to discuss the reduction of payments to dealers for subscriptions.
To rule on this case, the Dutch Authority determined that it needed more guidance regarding the enforcement of article 81 of the E.C. treaty prohibiting cartels.
First, the authority asked the E.C.J. whether it is necessary to assess the anticompetitive effects on the market of an exchange of information between competitors. On this point, the Court gave a clear answer, based on article 81 of the E.C. treaty and its case law: In determining whether a particular practice falls within the prohibitions of article 81, a court need only find either an anticompetitive object or an anticompetitive effect. As a consequence, there is no need to consider the effects of a concerted practice where its anticompetitive object is established.
The Court then spelled out the criteria for establishing an anticompetitive object in the context of an exchange of information among competitors: Such an exchange can be found to have an anticompetitive object if the exchange removes or reduces the degree of uncertainty of the competitors involved in the exchange concerning their conduct in the market. A single meeting can be sufficient if the purpose of the concerted action is to harmonize one parameter of competition such as, in this case, the reduction of dealer remunerations.
Secondly, the Dutch Authority asked the E.C.J. how the causal connection between the concerted practice and the market conduct of the participating competitors can be demonstrated. The Court stated that the national Courts or authorities should apply the presumption set out by the E.C.J. in its case law: It must be presumed that competitors involved in an exchange of information that remain active in the market will take account of the information exchanged with their competitors in determining their actions, unless the competitors can demonstrate the contrary. It should be noted that negative proof of this type may be difficult to establish.
Finally, the Dutch Authority asked the E.C.J. whether this presumption must be applied even if information was exchanged only during a single meeting. The Court's answer is clear: the presumption must be applied in such a case.
We remain at your disposal to discuss this case.
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